In M.C. v. Antelope Valley Union High School Dist., published March 27, 2017, the 9th Circuit Court of Appeals reversed a district court order affirming an administrative law judge's decision in a due process hearing brought by the parent of a blind child under the Individuals with Disabilities Education Act. The parent alleged that the child's Individualized Education Plan was procedurally inadequate because the IEP the parent signed included an offer of 240 minutes of services by a teacher of the visually impaired a month, which the district unilaterally amended more than a month later to 240 minutes per week without notifying the parent. At the hearing, District witnesses testified that the district offered the child 300 minutes of TVI services per week. The parent also alleged that the IEP failed to specify the assistive technology devices offered; and that the district failed to file a response to the parent's due process complaint.
The 9th Circuit emphasized that federal courts review decisions in IDEA due process decisions de novo. It criticized the district court for deferring to the ALJ's decision because it was lengthy and the due process hearing was three days long. The 9th Circuit concluded that the district violated the IDEA's procedural requirements by amending the IEP without notifying the parent or obtaining her consent to the modification, and because the amount of TVI even in the amended IEP did not match the amount the district witnesses testified to in the hearing. Further, had the district brought the error to the parent's attention before the due process hearing, the parent might have agreed to the number of hours provided, avoiding the hearing and the attorney fees the parent incurred. The IEP was also procedurally inadequate because it did not specify the AT devices provided. Parents must be able to use the IEP as a monitor and enforce the services their child is to receive. If the parent is unaware of the services offered to the child, and cannot monitor how they are provided, a Free and Appropriate Education is denied.
The 9th Circuit also concluded that the IDEA was procedurally violated because the district did not file a response to the parent's due process complaint. A response gives notice of the issues in dispute and binds the answering party to a position. When a school district fails to file a timely answer, an ALJ must not go forward with the hearing. The ALJ must order a response, and shift the cost of the delay to the district regardless of who is ultimately the prevailing party.
Normally, the party alleging a violation of the IDEA bears the burden of showing the services provided amount to a denial of FAPE. But where procedural violations as to the IEP deprive the parent of knowledge of what services are offered, the burden shifts to the school district to show that the services provided are adequate. The 9th Circuit emphasized that on remand, the ALJ must determine whether the services were adequate under the standard the U.S. Supreme Court articulated in Endrew F. v. Douglas County School Dist., decided March 22, 2017.
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